OHCA The Oregon Caregiver Spring Summer 2021

www.ohca.com SPRING/SUMMER 2021 The Oregon Caregiver 17 LEGAL & REGULATORY HIPAA Considerations Regarding Disclosure: HIPAA protects disclosure of health information by a health care provider, health plan, or health care clearinghouse. If the facility or in-home care agency directly administers the vaccine to an employee, the facility or agency may be considered a health care provider and thus may only disclose vaccine result information as allowed by HIPAA. In this case, however, a facility or in-home care agency usually is not directly administering the vaccine but rather using a pharmacy or other vaccination source. As such, HIPAA likely does not prevent disclosure of vaccine information. Americans with Disabilities Act (ADA) Considerations Regarding Disclosure: The ADA requires that an employer keep all medical information about employees confidential even if that information is not about a disability and further imposes a series of restrictions on an employer’s use of “medical examinations.” But, a COVID-19 vaccine is not considered a medical examination under the ADA because it is administered to obtain protection against contracting COVID-19, not to uncover information about an employee’s impairment or current health status. As such, it does not appear the ADA prevents disclosure of an employee’s vaccination status, with one caveat. A facility or in-home care agency that discloses an employee’s vaccination status must be careful not to disclose any underlying medical information related to the employee’s health status or disability. Other Considerations Regarding Disclosure: Just because the law may not prevent disclosure of an employee’s vaccination status does not mean you are required to disclose it. To encourage a workplace culture of trust and collaboration, consider adopting a policy of advising the employee that his/her/ their vaccination status is requested by a resident or client and obtain the employee’s permission to disclose. A formal HIPAA authorization form is not required to obtain this permission but if you have a HIPAA form it could be used for this purpose. Otherwise, a written form describing what information will be provided and to whom and indicating the employee’s con- sent to the disclosure, signed and dated by the employee, will suffice. If OHCA can be helpful in creating this form, let us know. The facility or agency can also consider obtaining permission to disclose vaccine information from prospective employees at the time of hiring. If an unvaccinated employee refuses permission, document the refusal and discuss what information can be provided to the resident/client. Also discuss any possible changes to resident/client assignment that may be necessary, avoiding adverse employment conse- quences if possible. Vaccine Passports The concept of a vaccine passport is increasingly being discussed as a method to allow access to particular spaces only for those who are vaccinated. Some facilities may consider such a passport for visitors as a resident safety measure. Such a move, however, would fly in the face of resident rights and Oregon Department of Human Services (ODHS) guidance, so don’t do it. On March 26, 2021, ODHS issued guidance that, in part, states that beginning fourteen (14) days after the second round of vaccinations for residents and staff, indoor visitation must be accommodated at all times and for all residents. There are exceptions to this right to visitation but they do not include the fact that the visitor is not vaccinated. You may require unvaccinated visitors to use heightened personal protective equipment pursuant to infection control and visitation protocols as well as state requirements and guidance; you just cannot prohibit them from visiting based on vaccination status. If you have questions about the issues discussed in this article, please contact Gwen at gdayton@ohca.com.